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MEMBER DIARY

Executive Orders

The problem with social engineering is that the engineers don’t know how to drive the train. More like a complicated machine than a single celled organism society is a collection of individuals. Human nature decrees that freedom of choice is an inherent part of our social DNA therefore a healthy society is one built upon the choices and decisions freely arrived upon by the individuals who make up the whole. It is the self-interest and self-direction of these choices which build into the productive life of a free society.

Adam Smith addresses the contributions of societies individuals when he says, “intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.”

Conversely, Friedrich Hayek warns us “To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.”

Unfortunately, politically motivated social engineers short circuit this process by replacing the countless choices and decisions of free people with the corrosive and stifling mandates of central planning.

Our nation was not founded to be a centrally planned socially straight-jacketed empire ruled by the decrees of a sovereign. We were founded upon the revolutionary principles born of our colonial heritage and the thinking of the Enlightenment. Having fought our way free from the crushing embrace of an overbearing king, our Founders were determined to establish a representative republic of the people, by the people, and for the people.

We are a constitutional Republic. We are a nation of Laws. As Thomas Paine said in the Rights of man, “The government of a free country … is not in the persons but in the laws.” Paine also remarked that if someone should ask, “Where is the King of America?” let us answer, “In America Law is King!”

Having studied the writings of Montesquieu and other Enlightenment thinkers, having established and maintained the separate branches of the various state governments, the Framers of our Constitution enshrined the principle of the separation of powers. This separation of powers is expressly stated in our Constitution. Article 1, Section 1 states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article 2, Section 1 states, “The executive power shall be vested in a President of the United States of America.” Article 3, Section 1 states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” These passages separate the three functions, legislative, executive, and judicial into three distinct spheres and it is the dynamic relationship between the three which restrains the government from becoming repressive and allows freedom to bloom.

Montesquieu said, “There can be no liberty where the legislative and executive powers are united in the same person.” James Madison, the Father of the Constitution said, “The accumulation of all power, legislative, executive, and judiciary in the same hands…may justly be pronounced the very definition of tyranny.”

Executive Orders have been used by presidents since George Washington. They are nothing new. Yet they have always been controversial. Washington issued the first one instructed the heads of departments to make a “clear account” of matters in their departments. His next one called for a national day of thanksgiving. He also issued the first one to cause controversy when he issued an order in 1793 stating that the United States would be “friendly and impartial toward the belligerent powers” of Britain and France. In this “Neutrality Proclamation,” Washington justified his power to issue such a statement based on the “law of nations.” Perhaps a constitutional justification could have been found in the powers of the President over foreign affairs but these were not referenced. Washington did not convene the Congress to debate the proclamation before issuing it. Immediately James Madison criticized Washington’s order as an overextension of executive authority and an infringement on Congress’s authority to decide issues of war and peace.

Although they have been stirring controversy since the dawn of the Republic originally Executive Orders were just what the name implies, orders from the executive and they were only binding upon the departments which made up the executive department. Most were never published and were only seen by the federal agencies involved. Some were of historical note such as when Lincoln suspended the writ of habeas corpus and issued the Emancipation Proclamation or when Wilson segregated the military.

The Presidency of FDR marked a major turning point in the use of Executive orders, as in many other things. Roosevelt confronted the Great Depression as the moral equivalent of war and fought an undeclared war in the Atlantic and crippled Japan through trade sanctions. Truman desegregated the military. Eisenhower ended wage and price controls imposed by his predecessor. Kennedy and Johnson ended discrimination in housing and education. Nixon declared a war on drugs. Presidents used executive orders to steer the ship of state.

Then starting with the Clinton Administration a sea change took place in the use of Executive Orders. President Clinton used his executive power to achieve results he failed to achieve legislatively.

Over time though technically applying only to executive agencies, executive orders have taken on a wider interpretation until today they have become legally binding mandates issued by presidents who rule by decree.

With President Obama, seconded and supported by his Attorney General Holder, deciding not to enforce laws they disagree with, the rule of law has ended in the United States. We can date our passage from a nation of laws to a nation of men not with this momentous decision but more effectively from the moment our elected representatives declined to declare this action to be unconstitutional and illegal.

Today we have a government that is careening out of control and those we have elected to protect our rights by upholding the Constitution are abusing our rights and subverting the Constitution. Thomas Paine made it clear which was the cart and which was the horse when he said, “A constitution is a thing antecedent to a government, and a government is only a creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting a government.”

We have clearly reversed the order. The cart is before the horse and the tail is wagging the dog. The use and abuse of executive orders have changed us from a nation of laws to a nation of men, from a federal republic with a limited government to a centrally-planned bureaucracy with leaders attempting to rule by decree. We know where they want to lead us. The question before us now is; will we go quietly into that dark night?